The first is that the Court emphasizes Casey's holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus' life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.

The second point worth noting is that Justice Kennedy invokes what has become the new rhetoricof abortion opponents-- the notion that women often regret abortions and that they are deceived by doctors into having them. This new (post Casey) line of argument arose in the mid 90s when abortion opponents realized that arguing primarily about the status of the fetus would not convince a majority of the public. Instead pro-life advocates sought to argue that abortion hurts women as well as fetuses. The new anti-abortion rhetoric attempts to demonstrate that few women in their right minds, who really understand what abortion involved, would defy their natural love for their children and consent to an abortion, much less seek to procure one. It tries to perform a rhetorical jujitsu move on the idea of choice, by suggesting-- without any empirical evidence, that women don't really choose abortions, and that to have an abortion is actually a violation of their "true" choices.

Elements of this new anti-abortion rhetoric appear in Justice Kennedy's argument that because of a mother's natural bond of love for her child, some women would not have abortions if they knew about the intact D&E process. Therefore Congress may ban the procedure entirely. But there are a couple of non-sequiturs here. First, the appropriate remedy for the problem Justice Kennedy identifies would be informing the women about the nature of intact D&E, not preventing the women from choosing whether to undergo the procedure. Second, if a woman did not want to undergo intact D&E, she might still choose to abort the fetus because, as the Court itself point out, the doctor could still perform regular D&E or terminate the fetus by injection before withdrawing it intact. In that case, "the bond of love the mother has for her child," would not prevent the mother from ending the fetus's life. In fact, the argument about mother love seems to be a makeweight; it seems to involve the claim that Congress knows better than women do about what they would choose in certain situations. The law forecloses choice rather than informing it. As Justice Ginsburg points out in her dissent, this is the very sort of paternalism about women ability to make decisions about their reproductive lives that the right to abortion seeks to counter. Justice Kennedy's use of this new form of anti-abortion rhetoric reveals that this particular line of opposition to abortion, at least, is premised on the notion that women don't really know or really understand what they want when they seek abortions.

The third interesting feature of Gonzales is that it retreats from Casey by requiring an as-applied challenge for those cases in which intact D&E is a safer procedure. The problem with this holding is that it allows legislatures to pass laws that have unconstitutional elements while placing the burden on individual women to raise as-applied challenges to each of these provisions. Given the time and expense of bringing such challenges, it is likely that they will be quite difficult to raise, and so many unconstitutional features of abortion laws will continue on the books for some time. The problem extends well beyond the issues in Gonzales-- it applies to many different types of abortion regulations that previously could have been challenged under Casey's undue burden standard.

Here is what I said back in 2005 when this issue was first raised in the Ayotte case:

The second, more technical issue in Ayotte is what plaintiffs have to show to get an injunction against a newly passed abortion statute. The Supreme Court's 1992 Casey decision suggests that if a new abortion law poses an undue burden to some signficant class of women to whom the regulation applies (or as the Court put it, "it operates as a substantial obstacle" to a "large fraction" of the cases to which the regulation is "relevant"), a court may enjoin it immediately. That is what the Supreme Court itself did in Casey with Pennsylvania's spousal notification provision. The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate.

If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.

The Court fudged this issue in Ayotte, but it has taken up the invitation in Gonzales. And the rule that Justice Kennedy seems to have crafted has most of the disadvantages I pointed out back in 2005.

Elements of this new anti-abortion rhetoric appear in Justice Kennedy's argument that because of a mother's natural bond of love for her child, some women would not have abortions if they knew about the intact D&E process. Therefore Congress may ban the procedure entirely. But there are a couple of non-sequiturs here. First, the appropriate remedy for the problem Justice Kennedy identifies would be informing the women about the nature of intact D&E, not preventing the women from choosing whether to undergo the procedure.....

This obejction is passe. In 2000, Kennedy (and other cowardly anonymous authors) decided that "remedies" don't have to have any rational relation to the supposed problem; in fact they can indeed cause the very problem that so excited the court (see Dubya v. Gore).

Great reasoning, except I don't believe that women should be forced to be informed about the procedure, rather doctors could be required to make the information available, including any questions that might arise, just like any other medical procedure: you have to make sure the patient has a chance to inform themselves. Probably the goal of the legislation is to force the doctors to inform the patient that the procedure available to them is more dangerous than the banned one, so the risk is higher to the patient. Every ethical doctor must weigh the risk to the reward and council against unnecessary risk. In the end, fewer abortions will result from the simple fact that the available procedure is more dangerous to the woman's health.

"The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health."

Compare:

"The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women’s health, authoritative medical texts, peer-reviewed studies, and the nation’s leading medical schools."

But Congress is admirably suited to determining matters of scinetific fact:

"Congress expressly found that the drug [marijuana] has no acceptable medical uses."

And then there's that stellar example of the Terry Schiavo law, where the luminaries of Congress, aided by skill not only in matters legal, but also matters medical, determined throught videotape examination the truth of the matter.... Hold the phone, Stockholm, we nominate Congress for this year's Nobel Prize in Medicine and Physiology....

Cheers,

P.S.: Contacted by phone, Mother Nature give a short comment: "Whatever. <*SHEESH*> A hundred years, they'll be dead, and I will still not be mocked."

Would you consider a statute which required mothers to view their unborn child through an ultrasound procedure and to be told exactly what the abortionist will physically do to their unborn child (as Kennedy does in his opinion) to impose an unconstitutional "undue burden" on the mother?

If so, why?

I cannot understand how a mother can make an informed choice when she does not know what it is she is choosing.

Under such a statute, we can put to the test whether mothers would choose abortion if they were fully informed of the facts. I would hazard a guess that abortions would fall off dramatically under these circumstances.

The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate.

Salerno is bad law in the sense that Scalia mis-stated the precedent when he claimed that facial challenges were inappropriate. Substantial precedents refute that assertion. It's also bad law on policy ground; conservatives on the Court are using it like they use standing, i.e., as a means of denying relief without having to take the political "hit" of rendering unpopular decisions.

Would you consider a statute which required mothers to view their unborn child through an ultrasound procedure and to be told exactly what the abortionist will physically do to their unborn child (as Kennedy does in his opinion) to impose an unconstitutional "undue burden" on the mother?

Not sure about the first part, but I don't have any inherent problems with the second part. I think doctors should give patients as detailed information as is possible on their options (all of them) and the risks and benefits.

Under such a statute, we can put to the test whether mothers would choose abortion if they were fully informed of the facts. I would hazard a guess that abortions would fall off dramatically under these circumstances.

I'd be a bit more leery if Congress dictated to the doctors what they are required to say (see above).

There's reason for concern too: The RWers have been flogging this crapola about abortions causing breast cancer for quite some time, and they're just the ones to try and get that to be legislatively mandated (along with false claims about condom efficacy, etc.)....

But as Prof. Balkin pointed out (and which seems to have whizzed 40,000 feet over "Bart"'s head), Congress wasn't concerned about "options" and information in this case; they required no information and foreclosed one option.

It's also bad law on policy ground; conservatives on the Court are using it like they use standing, i.e., as a means of denying relief without having to take the political "hit" of rendering unpopular decisions.

Outside of the inevitable lag that "as applied" challenges would take, one other point that shouldn't be missed is that abortion is a very time-critical issue; waiting for a court review will likely make the matter moot for any individual plaintiff. If the majority is thinking that mootness and/or standing can be used to then reject "as applied" challenges, they might be just making such laws effectively unreviewable on the merits, but avoiding having to get on a box and explicitly say so.

Bart... Would you consider a statute which required mothers to view their unborn child through an ultrasound procedure and to be told exactly what the abortionist will physically do to their unborn child (as Kennedy does in his opinion) to impose an unconstitutional "undue burden" on the mother?

If so, why?

I cannot understand how a mother can make an informed choice when she does not know what it is she is choosing.

I suggest you become pregnant, go through several months of morning sickness, (and worse), bringing a fetus to term. Then come back and tell us what you think. Some women are spared the more difficult aspects of pregancy. Some, in the grip of the confusing and emotion inducing hormonal soup, would like nothing better than to, by any means, "remove the obstacle" and the offending party (the father) who put it there. Then again, it wasn't too long ago that women who acted so "hysterically" were forced to have hysterectomies, (have their wombs removed). You could just take female hormones for a few months and see if your outlook improves, Bart. That might be fun. Let us know what happens.

Mark...It's also bad law on policy ground; conservatives on the Court are using it like they use standing, i.e., as a means of denying relief without having to take the political "hit" of rendering unpopular decisions.

I'm shocked! Shocked, I tell you, that our masculine and brave conservative justices would act so craven and cowardly. One could get the impression they were sniping from the bench.

It is "yucky" and science has recently determined there is an evolutionary basis for the emotion of disgust, and wouldn't you know, it's related to reproduction. However, being male, unless I am the father of the fetus in question, I prefer to stay out of other couples', or an individual woman's, reproductive affairs.

There is far more than the assertions of an amicus brief to support the contention that many women suffer from post-partum depression about which they are ill-informed before becoming pregnant. Does Carhart mean that the legislature can now outlaw certain forms of sexual intercourse that it finds particularly gruesome?

Mark raises a hypo I'd often pondered w/r/t laws against the sale of sex toys. In Mississippi, the state argued that such devices can impair marital relations, become habitual (!), cause hair to grow from one's palms. (Only 1 of those 3 is made up by me.)

Could the legislature forbid, say, rear-entry intercourse, on the grounds that many women (cite "study" here) find it demeaning, or whatever?

"Bart" DePalma asks Prof. Balkin: Would you consider a statute which required mothers to view their unborn child through an ultrasound procedure and to be told exactly what the abortionist will physically do to their unborn child (as Kennedy does in his opinion) to impose an unconstitutional "undue burden" on the mother?

arne: Not sure about the first part, but I don't have any inherent problems with the second part. I think doctors should give patients as detailed information as is possible on their options (all of them) and the risks and benefits.

We are agreeing far too much recently, arne. You have your rep to worry about if you become too closely aligned with me.

I'd be a bit more leery if Congress dictated to the doctors what they are required to say (see above)

That is strange coming from one of the imperial Congress cadre who thinks that Congress has the expertise to direct intelligence gathering and wars.

However, I would be satisfied with the graphic description given in the instant majority opinion or the medical manuals which teach these barbaric procedures.

Bart... Would you consider a statute which required mothers to view their unborn child through an ultrasound procedure and to be told exactly what the abortionist will physically do to their unborn child (as Kennedy does in his opinion) to impose an unconstitutional "undue burden" on the mother?

If so, why?

I cannot understand how a mother can make an informed choice when she does not know what it is she is choosing.

bosch: I suggest you become pregnant, go through several months of morning sickness, (and worse), bringing a fetus to term. Then come back and tell us what you think.

Are you arguing that mothers should be kept ignorant of what their child looks like and the fact that she is asking an abortionist to kill that child by ripping it apart because mothers need to agree to abortions to avoid morning sickness?

It depends on whether anyone in Congress wants to go on record voting to legalize this "procedure" after hearing testimony like this as reported in the majority opinion:

This is an abortion doctor's clinical description. Here is another description from a nurse who witnessed the same method performed on a 26 week fetus and who testified before the Senate Judiciary Committee:

"Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal.

Then he delivered the babyís body and the arms, everything but the head. The doctor kept the head right inside the uterus. . . .

The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the babyís arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

The doctor opened up the scissors, stuck a high- powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. . . .

He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used."

That is strange coming from one of the imperial Congress cadre who thinks that Congress has the expertise to direct intelligence gathering and wars.

As you would put it :: sigh ::. The whole point here is that government has no business meddling in people's medical decisions. I realize you disagree and believe the government has as much business banning abortion as banning murder. But to a person who believes that government has no more business interfering with abortions than with any other medical decision, it makes little difference which branch of the government does the interfering.

War and intelligence gathering OTOH, obviously are the government's business.

[Arne]: Not sure about the first part, but I don't have any inherent problems with the second part. I think doctors should give patients as detailed information as is possible on their options (all of them) and the risks and benefits.

We are agreeing far too much recently, arne. You have your rep to worry about if you become too closely aligned with me.

I'm not sweating it, "Bart". I'll continue to set you right when you misstate facts, opinions, law, and/or engage in logical fallacies or outright errors. That was the deal....

[Arne]: I'd be a bit more leery if Congress dictated to the doctors what they are required to say (see above)

That is strange coming from one of the imperial Congress cadre who thinks that Congress has the expertise to direct intelligence gathering and wars.

Why, when you're hot, you're hot, baby! You're absitively, posolutely right here. Tell Congress to get out of the way, and let "We, the People" decide....

However, I would be satisfied with the graphic description given in the instant majority opinion or the medical manuals which teach these barbaric procedures.

How about for the other options? How about a live Caesarian too?

Why "graphic"? I think I'd prefer "accurate" myself, without preying too much on people's emotions or their visceral (so to speak) distaste for blood (something that I got over long before I was doing vivisection and surgery, thankfully....)

"[B]arbaric", eh.... Surgery is a pretty bloody business, "Bart": Maybe we should show people full-colour videos of an operating theatre for open-heart surgery too, just so the folks that are thinking about that bypass know what they're in for. Same for organ donors, and then we could show them the bloody organ in the cooler too. Yep, full disclosure is always helpful....

If anyone can read the above eye witness description of partial birth abortion and tell me seriously with a straight face that this is "just another medical procedure," then they qualify under the legal definition of someone who is not responsible for their acts because they truly do not know right from wrong.

[Anonymous Bosch]: I suggest you become pregnant, go through several months of morning sickness, (and worse), bringing a fetus to term. Then come back and tell us what you think.

Are you arguing that mothers should be kept ignorant of what their child looks like and the fact that she is asking an abortionist to kill that child by ripping it apart because mothers need to agree to abortions to avoid morning sickness?

Or are you just changing the subject?

Funny. I was thinking of asking just the same thing of you, "Bart". No, "Bosch" didn't argue that.

Kennedy's argument is, not atypically, not entirely clear, but I don't think that it best understood to say that "because of a mother's natural bond of love for her child, some women would not have abortions if they knew about the intact D&E process." Rather, the suggestion seems to be that the ban itself has an educative effective, and that the educative effect of the the PBA ban would reduce the absolute number of abortions. (The point is to demonstrate the absolute reduction, since the dissent, following a Posnerian line, insists that an absolute reduction is needed to rationally link the asserted state interest and the regulation.)

That being said, I'm not at all enamoured with late-term abortions (nor is the Supreme Court, as has been the case since Roe). I'd prefer they were rare, and only when medically necessary. The anti-abortion nuts are doing their best to make such happen though, by making abortions harder to come by earlier and by trying to restrict contraceptives and BC information.

And there is the trying situation of what to do about a late-term pregnancy when you have the likes of trisomy 18.... I know; our family's been through that ("fortunately", Mother Nature intervened and relieved my relative of the responsibility of such a heart-wrenching decision).

"Bart", OTOH, is of the opinion that Dr. "I Can Diagnose From The Tee-Vee" Frist knows better than the people involved how to best deal with their personal issues and their sorrow....

The idea that seeing an ultrasound would reduce abortions assumes that pregnant women do not know what it means to be pregnant. I knew I was pregnant each time I had an abortion. No doubt about it. And who is going to pay for the ultrasounds? The taxpayers?

As for the idea that a late-term abortion = murdering a precious human being for no good reason, the evidence is that that is empirically false. It's about serious medical problems for the mother and/or the fetus. Killing those mothers who are precious human beings is evidently perfectly O.K.

Don't get too worked up. I agree with you though, this procedure is horribly wrong and immoral. If only modern liberals spent half the time they do protecting potential terrorists and spent it on the truly innocent. But, such are the moral inversions of the modern liberal mind.

How anyone can say that the fact that the baby's head is several inches inside the cervix makes it okay to kill it, but if you just pull it out 3 more inches then you can't, is a distinction without a difference.

If the baby pops out, why not allow the doctor (if it were possible) to put the head back in a few inches to kill it? Since, that seems to be the only real difference.

We can argue over the correctness of the legal reasoning in this case, but the procedure itself is just horribly, horribly wrong.

The idea that seeing an ultrasound would reduce abortions assumes that pregnant women do not know what it means to be pregnant.

Women have known what it is to be pregnant from the dawn of the species. What mothers and the rest of us have not been able to see until relatively recently is the humanity of the child being carried by the mother. Indeed, the Roe court was citing old English common law about "quickening" to make its argument.

Ultrasound changed all of that.

There is a reason why the pro life groups use ultrasound at their abortion alternatives centers and are trying to pass bills to make viewing an ultrasound mandatory before being able to abort the child.

The pro abortion forces are fighting these measures just as hard for the same reason.

Both sides believe that many women will forego abortions once they see the child to be killed.

And who is going to pay for the ultrasounds? The taxpayers?

Why not. To save children's lives, we publicly fund inoculations against a variety of childhood diseases. Right now about 1.3 million children die every year in abortions. If ultrasounds cut that figure in half, they would be far more effective than inoculations in saving lives.

As for the idea that a late-term abortion = murdering a precious human being for no good reason, the evidence is that that is empirically false. It's about serious medical problems for the mother and/or the fetus.

That is plainly wrong. Nearly every partial birth abortion is done for elective purposes. If the proponents of this ghastly form of infanticide could show otherwise, they would have over all the court cases for the past few years battling this issue.

Here's something for "Bart" DePalma to read while he's sitting on the can trying to expel the biggest thing he's ever tried to get out. Just in case it takes him a day or so, here's more (and he can follow the links too.

All your article shows is that most doctors equate D&E with abortion and fewer and fewer doctors are willing to teach abortion or learn to be abortionists.

Perhaps if the abortion of living children was illegal and D&E was reserved for true medical purposes where the child had died, then doctors would not have a moral objection to teaching or learning the procedure.

Ok, why, in the case of only abortion, would we force doctors to give the details of a procedure.

Have you ever looked at what is done medically to people with cancer? It's horrible. Same thing with something like AIDS. Heart bypass surgery?

Medical procedures are gross. They are yucky. It is perfectly rational to trust the expert, the doctor, to decide what to do without getting all the details.

There is a fundamental difference between a medical procedure and say partial birth abortion. The act of infanticide is what makes a description of partial birth abortion "icky," not the fact that it involves surgery.

Let me illustrate by comparing the medical description of a common procedure like angioplasty and a similar description of partial birth abortion:

First, here is a description of angioplasty:

Arteries can become narrowed or blocked by deposits called plaque. Plaque is made up of fat and cholesterol that builds up on the inside of the artery walls. This condition is called atherosclerosis.

If the blockage is not too severe, an angioplasty procedure can be used to open the artery. Traditional angioplasty involves the use of a balloon catheter -- a small, hollow, flexible tube that has a balloon near the end of it.

Before the balloon angioplasty procedure begins, you will be given some pain medicine. Occasionally, blood thinning medicines are also given to prevent formation of a blood clot.

You will lay down on a padded table. The health care provider will make a small cut on your body, usually near the groin, and insert the catheter into an artery. You will be awake during the procedure.

The health care provider will use x-rays to look at your heart and arteries. Dye will be injected into your body to highlight blood flow through the arteries. This helps reveal any blockages in the vessels leading to the heart. The balloon catheter is moved into or near the blockage, and the balloon on the end is blown up (inflated). This opens the blocked vessel and restores proper blood flow to the heart.

In almost all cases, a device called a stent is also placed at the site of narrowing or blockage in order to keep the artery open. A common type of stent is made of self-expanding, stainless steel mesh.

In a small number of cases, a special catheter with a small, diamond tip is used to drill through hard plaque and calcium that is causing the blockage. This is called rotational atherectomy.

In contrast, here is a description of partial birth abortion given by the Court. I rewrote it slightly to remove some of the "ickier" parts and to make it match as closely as possible the order and structure of above description:

Before the intact dilation and evacuation procedure begins, you will be given anesthesia to put you to sleep or a pain medication to allow you to remain awake during the procedure. Your fetus will not be given medication and will be alive through most of this procedure.

You will lay down on a padded table. The doctor will dilate or enlarge your cervix to make room to insert the instruments and to maneuver them to remove the fetus.

The doctor, often guided by ultra-sound, inserts grasping forceps through your cervix and into the uterus to grab the fetus. The doctor grips the fetus with the forceps and pulls it back through the cervix and vagina until only the crown of the fetus' head remains in your body.

The doctor will then push a pair of scissors through the base of the fetus' scull and into its brain. The scissors are then opened to create a hole in the fetus scull large enough to insert a suction device. The doctor with then insert a suction device into the fetus' head and vacuum out its brains until it dies.

The fetus is then removed entirely from your body. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus.

Sometimes, the fetus is torn apart as it is pulled through your cervix. In such a case, the doctor will use forceps pull out the fetal body parts which are left in your body. The doctor then examines the different parts to ensure the entire fetal body has been removed.

Perhaps if the abortion of living children was illegal and D&E was reserved for true medical purposes where the child had died,....

Well, at least we have "Bart" agreeing that D&X [note "Bart"'s mislabeling here; D&E is still permitted under the law in question] is in fact a medically indicated procedure. If course, that efficaciousness is not dependent on whether the foetus is still alive....

There is a fundamental difference between a medical procedure and say partial birth abortion. The act of infanticide is what makes a description of partial birth abortion "icky," not the fact that it involves surgery.

Well, yes, when you assume your conclusion and define the procedure to be "infanticide".

But, that being said, the ban in question here is not a ban on the supposed "infanticide" (D&Es are still legal), it's a ban on the "yucky" procedure.

In contrast, here is a description of partial birth abortion given by the Court. I rewrote it slightly to remove some of the "ickier" parts and to make it match as closely as possible the order and structure of above description:

Before the intact dilation and evacuation procedure begins, you will be given anesthesia to put you to sleep or a pain medication to allow you to remain awake during the procedure. Your fetus will not be given medication and will be alive through most of this procedure.

You will lay down on a padded table. The doctor will dilate or enlarge your cervix to make room to insert the instruments and to maneuver them to remove the fetus [blah] [blah] [blah]....

This is not the doctor's standard informational spiel. This is "Bart"'s 'reworking' of the majority's description of an D&E procedure:

"A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion Federation, supra, at 465; App. in No. 05-1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., Carhart, 331 F. Supp. 2d, at 852, 856, 859, 862-865, 868, 870, 873-874, 876-877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. Nat. Abortion Federation, supra, at 464-465; Planned Parenthood, supra, at 961.

"After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion Federation, supra, at 465; Planned Parenthood, supra, at 962.

Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. Carhart, supra, at 907-912; Nat. Abortion Federation, supra, at 474-475."

Nothing particularly "icky" there (although "Bart" conveniently leaves of off that last paragraph). Note that this is the description of D&E, not the banned D&X.

But this part of "Bart"'s description is not part of the above:

["Bart", channeling the majority opinion's secret writings]: "The doctor, often guided by ultra-sound, inserts grasping forceps through your cervix and into the uterus to grab the fetus. The doctor grips the fetus with the forceps and pulls it back through the cervix and vagina until only the crown of the fetus' head remains in your body.

[Note: This is simply false. The entire purpose of the suction in D&X is to get the whole head through the cervix (well inside the woman's body), if dilation is insufficient to allow it to pass through. The word "crown" (that is to say, "top") appears nowhere in the opinion]

"The doctor will then push a pair of scissors through the base of the fetus' scull and into its brain. The scissors are then opened to create a hole in the fetus scull large enough to insert a suction device. The doctor with then insert a suction device into the fetus' head and vacuum out its brains until it dies."

IOW, "Bart"'s just making sh*te up here and pretending that someone else said it.

This is not a particlarly sensitive audience here; "Bart"'s claimed solicitude for his audience is in fact an insult to them; he uses this dodge to avoid quoting and citing what was actually said and instead insert his own slanted, misleading, and inaccurate propaganda.

Bart says: Perhaps if the abortion of living children was illegal and D&E was reserved for true medical purposes where the child had died, then doctors would not have a moral objection to teaching or learning the procedure.

Bart,

Where does the article say that doctors don't teach the procedure b/c of moral objections to it? I must have missed that...

Bart says: Perhaps if the abortion of living children was illegal and D&E was reserved for true medical purposes where the child had died, then doctors would not have a moral objection to teaching or learning the procedure.

Bart,

Where does the article say that doctors don't teach the procedure b/c of moral objections to it? I must have missed that...

Your two choices are that the medical profession is negligent in failing to teach this procedure or they have moral problems with doing so. I see no evidence of the former.

Given that this article is a pro abortion persuasive piece, you do not really expect the author to hurt her argument by acknowledging the fact that fewer and fewer doctors are willing to teach and learn abortion procedures because of moral objections?

Over 60% of abortions are performed for women who have already borne a least one child. What new information is an ultrasound supposed to provide tham?

Once again, just like every mother knows when she is pregnant, every mother with children also knows what a newly born infant looks like. However, many mothers have no idea what their child looks like at the time she is considering an abortion.

As with any other type of homicide, it is easier to commit abortion when you rationalize that the victim is something less than human. That is why pro abortion groups like to use euphemisms like "undifferentiated lumps of cells" to describe the child. However, such rationalization is difficult when you can see the child clearly in a modern ultrasound.

If you do not believe this is so, then you should have no objection to a law requiring the at the mother view an ultrasound of her child before an abortion because such a law would be harmless.

Under your argument, an ultrasound of an unborn child would not convince a mother to forego an abortion any more than I was discouraged from getting surgery to fixate my broken ankle after seeing the x-ray of the break.

However, you, I and nearly everyone else involved in this debate know that an unborn child is not just another body part. That is why the pro abortion groups are fighting such laws tooth and nail.

Both descriptions were, to me, "icky", although I have to admit that I am squeamish about any medical procedure. However, if I had to perform or undergo a necessary procedure, I could (and have) done it with no compunctions whatsoever. You do what you gotta do.

I do wish to point out another issue with Bart's either or choice--are abortion procedures not taught as much due to medical necessity or moral squeamishness. I can think of at least two other reasons:

Reduction in OB/GYN practitioners due to increases in med mal insurance for that specialty.

Reduction in OB/GYN practitioners willing to perform abortions due to personal risk thanks to outspoken and active anti-abortion activists who have harassed and attacked such practitioners.

The first is a market force; the second is the imposition of a viewpoint through fear tactics. I am sure that more possibilities could be brought forward.

At one point, my wife pointed out a family planning/abortion clinic that was a signless, non-descript office building. She had applied for a job there, but took another position due to better pay.

I was thinking that physicians willing to perform such procedures have to take various steps to minimize their profile due to fears of harassment and violence directed against them.

How would an attorney who, say, defended drunk drivers that had killed pedestrians or other motorists, feel if their offices were boycotted by protesters who claimed they were helping child killers and family wreckers, and received threats of death and violence against themselves? I am sure that such protests might decrease practitioners who would be willing to defend drunk drivers.

I am not, nor would I ever condone such practices. However, when I read my local police/court sheet, and see cases dismissed or remanded or closed for court costs against drivers on their third, or fourth arrest for DUI/suspended license/revoked license I wonder. Attorneys feel correctly that such people do have the right to representation, but how is the community and morality (let alone mortality) served by having such dangerous people on the roads?

I feel that practitioners have to make the same type of personal decision as such an attorney.

Bart says: Adam, you are welcome to come up with another reason why the medical profession is increasingly reluctant to teach or learn abortion methods in addition to the two which I offered.

A dilemma is only false if there are other options.

I say:

Happy to oblige. Medical schools/teaching hospitals are failing to train students in abortion procedures in general.

See http://www.ms4c.org/issueshortage.htm

There are many reasons why a med school/teaching hospital might not spend much time training students in D&E and other types of abortion procedures (or why students/residents might choose to go into some other field) apart from moral considerations. As the article suggests, restrictive legislation casts doubt on the legality of the procedure. Also, abortion providers are subject to harassment and, in some cases, threats of physical violence (radiologists rarely encounter such concerns). Also, only 5-10% of abortions are performed in hospitals, where most med students/residents are trained. So, training is difficult to come by, even if the resident/med student is interested in the education. http://www.ama-assn.org/amednews/site/free/prsa1024.htm

For those who are wondering when, if ever, such "icky" procedures could really be necessary, you can read this post by CHS at FDL, in which she includes an extensive excerpt from a JAMA article, written by someone with some actual "skin in the game."Of course these procedures are and should be rare-- but it should not be illegal for a doctor to perform one for a woman who needs one. Icky or not.

And it should not be up to a bunch of men in black robes to be the "deciderers" for either the woman or her doctor.

No exception for health? I've been pessimistic, but I really never thought I'd live to see this day.

Okay, after looking at the opinion at bit more, here is what I think a reasonable explanation.

The Court says that Casey applies, along with Casey's undue burden standard. Though the decision today, seems to apply rational basis language. Here's how it is all justified.

Banning D/X doesn't violate the undue burden standard because the banning of D/X never prevents the women from attaining an abortion. There is always a safe alternative according to the Congressional findings. So, banning this particular procedure is more akin to a medical profession regulation, like saying that doctors have to always wash their hands, or can't use this particular kind of equipment, etc. So, the Court is saying that Congress can ban particular medical procedures that it wants to if it provides sufficient state justifications. This allows the Court to sidestep the more searching scrutiny applied in Casey and instead apply rational basis (presumably from its commerce clause precedent). Therefore, even if there isn't an exact fit between the means, banning this particular procedure, and the ends stated, it is okay if there is some under/overinclusivity. Furthremore, under rational basis, the legislatures are allowed to implement policies that only go one step at a time towards addressing what is a perceived problem.

To me, the whole case hinges on the Court's scrutiny of the Congressional findings that a particular procedure (D/X) isn't ever medically necessary.

And so the first "medically unneccessary" procedure has been determined by Congress. Eventually, all procedures could be found unneccessary, except for abstinence, of course, becaus pregnancy itself, despite many medical breakthroughs, is dangerous for the mother's health. So if she didn't want to be pregnant with a potentially deadly condition, she could just have said "no".

... although I have to admit that I am squeamish about any medical procedure.

Angioplasties can be real fun. You're putting a big tube into an artery (with full arterial pressure). A little leak and there's blood spurting everywhere. Even more fun is the dye-contrast angiography; here they have huge motorised injection syringes to inject the bolus at fairly high pressure. Leaks there and you have a very sanguinary OR....

D/X was only medically unnecessary insofar as there was another procedure (D/E) which could operate as or more safely in every situation in which D/X was used. That is the operative legal definition of medically unnecessary in this decision.

It's justified through the Commerce Clause power. However, as Justice Thomas notes, he might (probably) would have reached a different decision if the law had been challenged under the commerce clause, but it wasn't.

What I think is an interesting thought exercise, is what would the result be under a commerce clause challenge? Thomas would likely strike it down, because of his very restrictive view of the commerce clause power. But, how would the other conservatives justices respond? Do we know much about Alito's or Robert's on this? (I don't remember off the top of my head).

The fundamental problem with this case is that the Justices (Kennedy in particular) didn't want to dismantle the court's abortion jurisprudence, but yet still get the result they wanted. So, although they affirm Casey (or at least assume it), and don't overrule Stenberg, Kennedy crafts this somewhat iffy opinion that keeps the broad outlines of the Court's abortion jurisprudence intact, but still allows Kennedy to ban, what is to him, a particurly gruesome and immoral procedure.

Part of the conservative's problem is the fact that the health exception, as currently used by SCOTUS, is an exception that swallows the rule. They should deal with that, I think. Make something more reasonable, like the mother's life trumps the unborn babies, but if it is merely health--which most of the time means convenience--then the state's interest in potential life should trump, or at least for certain procedues, or after viability, etc. The specifics can be debated seperately.

"Banning D/X doesn't violate the undue burden standard because the banning of D/X never prevents the women from attaining an abortion. "

That was your understanding of the logic, which I read as stating that the woman could always have gotten an abortion prior to that procedure being the option. Someone else (no pun intended) on this thread has already indicated that the banned procedure is medically indicated in certain circumstances, notwithstanding the medical expertise of Congress.

I think here is the confusion, you state, "which I read as stating that the woman could always have gotten an abortion prior to that procedure being the option."

Well, that isn't correct. As far as I know, they are merely alternative procedures, each of which can be used anytime the other can (as far as a timeline of pregnancy is concerned--leaving aside health issues). The argument put forward by the proponents of D/E is that sometimes D/E may be a safer alternative than D/X.

This is an interesting reading. I wonder how conservatives justify Congressional regulation of the practice of medicine.

Part and parcel of the ridiculous assumption by courts that legislatures ought to be taken at their word as to "intent" or "purpose" and given deference in their "determinations".

Only on rare (and particularly obvious and egregious cases) do they take note of the politics going on in the background (e.g., Wallace v. Jaffree, and Edwards v. Aguillard WRT "intent"; here they were aided by particularly loose-mouthed legislators).

Similarly, they show deference to "findings" by Congress even if the actual facts at at variance with those "findings".

I wish courts would take a more active role in looking at these things. To my mind, a "rational basis" should, at the minimum, accord with the actual facts at hand. And they should look more carefully at collateral evidence and just plain common sense in looking at "purpose" and "intent".

Make something more reasonable, like the mother's life trumps the unborn babies, but if it is merely health--which most of the time means convenience--then the state's interest in potential life should trump, or at least for certain procedues, or after viability, etc. The specifics can be debated seperately.

When you deal with any surgical procedure, risk (not just to "health" but to life) sneaks in. The ACOG is of the opinion that complications, some quite life-threatening, are more common with the laternative procedures. And if there is any higher risk of death, that's clearly somethign of great concern to a patient.

We get to a little stickier area if we start talking "health" after having determined than there's no greater risk to life itself. If there's serious risk to, say, reproductive health or ability, that is also something of concern to the patient. Sure, they may not die, but isn't the risk of sterilisation a very significant issue for someone? Why shouldn't they be allowed to weigh that decision themselves? How about mental health? If they would be at higer risk of lifelong suffering due to a choice imposed on them, is this fair?

When I had surgery, and my doctor described my options, I would have loved to hear her tell me that a particular surgical option would be safer for me, but was illegal. "I'm sorry, Mr. Guy, but I can't perform the less invasive and less risky procedure."

I might start looking up (because I am financially able to) overseas vactation surgeries. Unfortunately many women don't have that option.

I recall someone pontificating over at Digby's that it's ok if the rich do something wrong, as they have enough money to pay for their mistakes, whereas the poor should lead faultless lives because they can't afford mistakes (either from unhealthy lifestyles or risky behavior).

As to your first point,Sure, we can argue over the specifics. If giving birth would destroy the women's ability to ever give birth, then sure maybe that is a sufficient health justification. My point, and that of other conservatives, Justices like Scalia, is that the current health exception which allows practically anything to fall under it destroys any ability for the state to ever has its interest in potential human life realized. The literature indicates that the vast majority of women give birth primarily for convenience related factors, not rape, incest, because their life was at risk, etc. As long as the health exception swallows the rule, it will be very difficult to get some sort of relatively consistent jurisprudence on the matter (outside of allowing all abortions, or banning all). I may exagerate slightly (but not much), but the health exception and what it covers is something that really needs to be looked at going forward.

As to your second point, the procedure is banned because the state A.)has the power under the current commerce clause jurisprudence, and B.) it uses this power to achieve what are recognized as legitimate state interests.

Now, we can argue standards, for that, see my other posts. But, this is how we get to where we are.

Does this other procedure involve killing a living thing, something with its own unique DNA, that is possibly past viability (which is when many D/E and D/X procedures occur, though not all) and can therefore live independently of you? I don't think so. (I'm not trying to wax emotional, just making my point.)

That's why there is a different analysis here. The "its just like removing a wart" line is inapplicable.

Even I, a strong believer in CC power, am surprised to see CC power extended thus far. Not opposed, mind you, just surprised. I'm shocked, though, that a conservative movement which has for years protested the latitude of CC power would accept the result here; makes their whole position look results-oriented rather than principled.

Part of the conservative's problem is the fact that the health exception, as currently used by SCOTUS, is an exception that swallows the rule. They should deal with that, I think. Make something more reasonable, like the mother's life trumps the unborn babies, but if it is merely health--which most of the time means convenience--then the state's interest in potential life should trump, or at least for certain procedues, or after viability, etc.

I think the current trimester rule allows states to do just that. Your post suggests a balance between the stage of pregnancy and the extent of regulation, and I have no objection to that in principle.

Side Note: Trimesters were basically thrown out in Casey. Now, its a sliding scale, looking at viability.

To make any sort of abortion compromise practically possible and jurisprudentially (if that's a word) reasonable, the current hodgepodge of decisions needs to all be overruled.

Kennedy just likes banning things he personally finds morally repugnant (D/E here, anti-sodomy laws in Lawrence), without upsetting too much the relevant jurisprudence. The problem is its very difficult/impossible? to do so in a consistent way without implicitly establishing new principles that lead to a further logical conclusion not originally intended or desired.

Btw, I do find the justification under the CC power to be questionable--especially from a convervative standpoint. More reasons for why I want Roe overturned, and the issue left to the states. In that context, then no CC power that allows the government to ban particular procedures. So, if one state wants to allow it D/e, well okay then.

I do wish to point out another issue with Bart's either or choice--are abortion procedures not taught as much due to medical necessity or moral squeamishness. I can think of at least two other reasons:

Reduction in OB/GYN practitioners due to increases in med mal insurance for that specialty.

This is an interesting argument. However, abortionists usually specialize in this area and are not traditional OB/GYN doctors. You almost never hear of an abortionist being sued, so I doubt that insurance rates are keep their ranks from growing.

Reduction in OB/GYN practitioners willing to perform abortions due to personal risk thanks to outspoken and active anti-abortion activists who have harassed and attacked such practitioners.

You raise two different issues here.

One is that the pro-life movement has successfully shamed substantial numbers of doctors from having anything at all to do with abortion. I agree and this falls under my moral objection category. They are also reportedly having similar success in this regard in Britain.

The other is that the handful of shootings have scared off substantial numbers of doctors from having anything at all to do with abortion. Can you offer any evidence of this? Has anyone claimed to have been scared off by death threats?

As the article suggests, restrictive legislation casts doubt on the legality of the procedure.

The problem with this argument is that no legislation successfully outlawed any abortion procedure until this opinion came down. Given the the drop off in the training for and practice of abortion predated this opinion by at least a decade, I am not seeing the relationship.

Frankly, I was a little shocked that Kennedy bucked his recent evolution toward the left over the past two years and wrote this opinion. I did not think that I would see abortion substantially outlawed in my lifetime.

This is an interesting reading. I wonder how conservatives justify Congressional regulation of the practice of medicine.

If you believe, as I do, that the CC means what is says, Congress plainly had no power to enact this law. Abortion is not interstate trade.

However, the courts gutted the plain meaning of the CC some 70 years ago. Under the Court's current expansive definition, the statute can be justified because abortionists often cross state lines to deliver their services.

"This is an interesting argument. However, abortionists usually specialize in this area and are not traditional OB/GYN doctors. You almost never hear of an abortionist being sued, so I doubt that insurance rates are keep their ranks from growing."

Possible, I was unaware of the extra specialization, although most are listed as OB/GYN when you can find them.

"You raise two different issues here.

One is that the pro-life movement has successfully shamed substantial numbers of doctors from having anything at all to do with abortion. I agree and this falls under my moral objection category. They are also reportedly having similar success in this regard in Britain.

The other is that the handful of shootings have scared off substantial numbers of doctors from having anything at all to do with abortion. Can you offer any evidence of this? Has anyone claimed to have been scared off by death threats?"

Can you offer the evidence of the moral impact over the threat impact, in the US? From my wife's discussion with the practice, the reason they avoided ANY streetside signage (or other advertising) was to avoid notice for safety reasons. Obviously, this is anecdotal, but I do believe it to by typical.

"The problem with this argument is that no legislation successfully outlawed any abortion procedure until this opinion came down. Given the the drop off in the training for and practice of abortion predated this opinion by at least a decade, I am not seeing the relationship."

However, from my work in the corporate world, businesses are not blind to possible changes to the legal landscape, and do well to position themselves so that they will not be caught on the wrong side of a law change. If there has been a full court press in numerous jurisdictions that would outlaw what you do, an abortionist would be foolish to not consider a change in speciality to avoid being out of a job. I would assume that it would take some time to move back into the OB/GYN mainstream.

I believe that this leaves at least two valid options, other than the ones you gave, as reasonable alternatives to why there are fewer practitioners. With a little more research and cogitation, I believe more could be found.

[Someone]: The argument put forward by the proponents of D/E is that sometimes D/E may be a safer alternative than D/X.

[Arne]: Perhaps. Why should one be banned?

As to your second point, the procedure is banned because the state A.)has the power under the current commerce clause jurisprudence, and B.) it uses this power to achieve what are recognized as legitimate state interests.

I asked, under those circumstances you stated, "Why?". I didn't ask if they had the power to do so.

Lordy me. I was totally mistaken. I thought the "morally repugnant" argument was Scalia's in Lawrence, on the other side of the aisle. I thought it was Scalia that was horrified by his hunting partner's daughter's activities (although he doesn't comment on that, perhaps because of the object lesson of another lawyer, Whittington....).

One is that the pro-life movement has successfully shamed substantial numbers of doctors....

Ummm, that's spelled "murdered".

Can you tell me off the top of your head how many ENTs have been killed by whackjobs lately? How many oncologists have not only to drive to work wearing flak jackets, but to provide armed security for even their nursing staff and receptionists?

You raise two different issues here. One is that the pro-life movement has successfully shamed substantial numbers of doctors from having anything at all to do with abortion. . . . The other is that the handful of shootings have scared off substantial numbers of doctors from having anything at all to do with abortion.

Once again, you overlook middle ground. Few abortionists have been killed. But there have been many more cases of harrassment, threats, stalking, bombings after hours, fake anthrax threats, etc. Most people who do these things do not have a homicidal intent. But their actions are clearly intended as intimidation, not moral suasion or even social shame. And abortionist do not know in advance which of the handful of people harrassing and threatening them really do have homicidal intent.

My point was that it seems in both Lawrence and here, Kennedy seemed more results orientated rather than consistent legal analysis. Kennedy seemed to find the anti-sodomy laws pretty distasteful as he does the D/E procedure. I can't prove a common thread exists, I'm just find it plausible.

I talked to my wife over dinner about the clinic. The doctor was a full OB/GYN, and only a portion of his patients required/requested abortions. However, in order to protect his patients, he took the steps I described above. In addition, all patients were buzzed in and out of the building, they had a full security camera suite around the location, and patients were brought to the building by hired vehicles so their own cars would not be traced.

Call me crazy, but for some reason, this does not sound like Bart's "morally persuaded" doctor, but like someone who is in fear for their life. Sounds like those moral persuaders have some mighty powerful arguments at their sides. Maybe in holsters.

Maybe I missed it. Where did Kennedy find anti-sodomy laws "distasteful" (as opposed to, say, "illegal"). Did Kennedy say (or imply) that the defect in these laws was that they were distasteful to him? That would be news to me....

One of my buddy's recently got into some trouble at a bar and the short story is he was arrested on assault charges which are ridiculous we were there and watched as a random guy came up to him punched him in the face and began repeatedly beating him. He stood up to defend himself and in the crossfire the wasted dude fell and banged his head on the kerb. The cops show up and don't want to hear us and arrest him.It all got cleared up in the end but had that have gone to court and my friend had to have paid court bonds could he have claimed them back or even sued the police force for wrongful arrest? Also where would be the best place for getting bonded?

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